Court Kills Most of Idaho's Law Against Secret Farm Recordings

A likely-fatal blow to to the state's censorious "ag gag" law


Danny Raustadt /

Last week, the Ninth Circuit Court of Appeals ruled that parts of Idaho's "ag gag" law are unconstitutional. The court upheld, in part, a U.S. District Court ruling from 2015 that found the Idaho criminal law runs afoul of the First Amendment.

Ag gag laws are on the books in seven states. As the Ninth Circuit explains, these laws "target[] undercover investigation of agricultural operations [and] broadly criminalize[] making misrepresentations to access an agricultural production facility as well as making audio and video recordings of the facility without the owner's consent."

Proponents of the Idaho law, including lawmakers, argued it was intended to "quash investigative reporting." A person convicted of violating the law faced up to one year in prison and a fine of up to $5,000.

The case decided last week, Animal Legal Defense Fund v. Wasden, saw several animal-rights and free-speech groups, including the ALDF and ACLU, join with others to sue Idaho in an effort to overturn an Idaho law that makes it illegal to snoop on agricultural producers. The 2014 law was drafted by the Idaho Dairymen's Association, which was unhappy when video taken by an animal rights group, Mercy for Animals, revealed abominable mistreatment of dairy cows in Idaho.

Does this decision throw open the doors of agricultural operations in Idaho to trespassers of all sorts? Hardly. "If, as Idaho argues, its real concern is trespass, then Idaho already has a prohibition against trespass that does not implicate speech in any way," the Ninth Circuit ruling notes.

I discuss the case (and ag gag laws more broadly) in my recent book, Biting the Hands that Feed Us: How Fewer, Smarter Laws Would Make Our Food System More Sustainable. I also organized more than a dozen fellow food-law faculty from around the country to sign on to an amicus brief in support of the ALDF and its fellow plaintiffs. And I attended oral arguments in the case in Seattle in May, which I wrote about here.

In our brief, we argued in favor of the value of the information that undercover investigations provide to consumers by making that information available within the marketplace of ideas. As the court rightly notes, "undercover investigative reporting… has brought about important and widespread change to the food industry, an arena at the forefront of public interest."

The good news in last week's the Ninth Circuit ruling is that the court effectively overturned the Idaho law. The court found that two key parts of the Idaho law—one prohibiting a person from misrepresenting themself to enter an agricultural production facility, the other banning a person from making audio or video recordings of a production facility—are unconstitutional. But the Ninth Circuit reversed the lower court, upholding the part of the Idaho law that criminalizes the act of obtaining agricultural production facility records by misrepresentation.

Supporters of ag gag laws did find a silver lining in last week's ruling.

"The big news in this decision is that lies or false speech can be 'criminalized' if made 'for the purpose of managerial gain or material advantage or if such speech inflicts a legally cognizable harm,'" writes Farm Futures columnist Gary Baise, an attorney and farmer.

But opponents of Idaho's law—and ag gag laws in general—should find much more to like in last week's ruling.

"The Ninth Circuit's decision in ALDF is an important victory for consumers," says Mahesha Subbaraman, the appellate attorney who drafted ands submitted the amicus brief on behalf of me and the other food-law scholars. "The decision ensures that consumers will continue to reap the benefits of investigative journalism directed at exposing the true conditions of food production."

NEXT: Throw Your Kid in the Scorpion Pit

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  2. this is a positive development, but all the progressives who love these heavily edited videos of farm abuse sir do try and shut down and ban identical tactics for PP and abortion clinics. Few people support both.

    1. I know libertarians like to use orphans in their monocle factories, but are you seriously suggesting orphans can be farmed? Sir, I would like to subscribe to your cookbook mailing list.

      1. I strip search all visitors to my monocle factories so I don’t end up on videos.

        1. It’s okay, man, you don’t have to try to justify it here.

    2. Few people support both.

      Which is a a double standard and symptom of vacancy of principle.

  3. It is appalling that the 9th would uphold a law reinforcing the right to dictate what happens on your own property, particulary by people who misrepresent themselves to gain access where they otherwise would have been refused. Was this not the same court that found against the activists working to expose planned parenthood?

    Activist propaganda is distasteful and a bane to society. Showing reality is one thing, but the vast majority of the activists use selective editing and/or selective timing to misrepresent. But that is all accepted as unvarnished truth as long as the opinion fits in proggy right-think.

    1. When activists expose the conditions at the Drumpfenc?cken tear farms, you will be grateful.

      1. “…Drumpf…”
        13 years old? Or just retarded?

  4. And Baylen, only a closeminded person would consider what these activists have been doing as showing the truth to consumers. That is utter bs. They are pushing an extremist anti-meat agenda.

    1. Are the scenes of animal cruelty in some of the (heavily-edited) documentaries depictions of of practices that happen … never? so seldom as to be irrelevant? occasionally? regularly?

      1. Did these so-called animal rights activists get signed releases from the cows before filming them? Don’t animals have a right to privacy and to control their own likenesses? Aren’t they entitled to royalties?

        1. Animals in most states are property, so no they don’t have rights.

          1. Do I really have to point out that I am being sarcastic about the whole notion of animal “rights?”

      2. That is the critical question, which is never answered is these activist hit-pieces. Most likely abuses of any sort follow the same trend everywhere…the percentage of idiots and sociopaths in the human species.

        Misrepresenting yourself, to enter private property, with the intent to record for the purposes of using such fraudulently obtained information to directly attack the livelihood of the business that you trespassed on. That is not free speech. That should be a crime.

        1. It might be tough to write that statute. Suppose the recording is “merely” of the normal day-to-day practices of the business. How would the state show it was made “for the purposes of using” it “to directly attack the livelihood”?

          1. Like people who fraudulently enter abortion clinics to film employees talking about their business practices…

            Funny how many people pivot their opinions about the law and rights based on the politics of the protagonists.

            1. Both actions are problematic. Doubtful the ninth would rule equivalently for either.

          2. No, its not. It should be illegal to record on private propery without the owners permission. Why is that so difficult to understand? Regardless of the intent, it is a direct violation of property rights, and not at all a first ammendment concern.

            Legally, how is it different than someone claiming to work for an utilty company, gaining access to your private residence and filming the cleanliness of your home, how you treat your kids, how santized your bathroom is, the selectively editing the information to portray you in an adverse light to delgitimize your influence in the public space.
            In private, everone has defects that if focused on, look ugly and distasteful. We are human.

            1. Misrepresenting yourself, to enter private property, with the intent to record for the purposes of using such fraudulently obtained information to directly attack the livelihood of the business that you trespassed on. … That should be a crime.

              It should be illegal to record on private [property] without the owners permission … [r]egardless of intent … .

              Are these crimes to be consolidated in one statute, or are they separate? Why should they be criminal rather than civil offenses (torts)?

              1. You are being intentionally obtuse. The law as written by the Idaho legislature codified this specific type of criminal trespass. Most trespass is criminal if done with knowing intent. The law was not specific to speech, but rather to the illegal aquisition of information obtained through fraud. In no way was this a first amendment issue and the 9th is doing its normal activism on the side of prog causes.

    2. They are pushing an anti-meat agenda but so what. People filming food processing is in the public interest to keep our food supply safe. If some people stop eating meat then so what.

      The only reason that I don’t want animals kept in contaminated filth is so my food supply is not unsafe. I will continue to eat meat no matter what they do to animals to kill them and process them for food.

    3. You can’t demand self regulation through the free market and then turn around and demand the government protect all of us dumb consumers from propaganda. It’s one of the other. Either the government protects us from everything, including ourselves or people are generally savvy and can decided for themselves.

      1. The government already protects us from lies that are designed to harm the reputation a person or business. That’s called libel and slander. What the ag gag laws attempt to do is to protect certain businesses from propaganda, whether or not it is true.

  5. How is a law prohibiting fraudulent identification unconstitutional?

    1. Well, that is the best question isn’t it? I am not sure where this will dovetail with defamation, but the ninth loves fraud of most types, especially voter fraud (but that’s another story). The good news is this precedent will be used in support of those exposing the frauds of Planned Infanticide, as the intended beneficiary of this new case law will be “investigative journalism” which almost never occurs without misrepresentation. Not to go too far off the path, abortion has and will be… it simply should not be funded with tax dollars for a simple reason: our federal government has become a clearing house for fraud and money laundering.

    2. You have a 1st Amendment right to lie to people unless it involve fraud to steal money from them.

      The government cannot make a law to force Americans to use their birth name. Its why most states have some method for easily changing your birth name to keep track of people because otherwise people could just go around using whatever name they wanted.

      1. It is and should not be limited to just stealing money.
        Stealing someones privacy and using to disruptbtheir ability to work or destroy their character is no differnet than the base stealing of money.

  6. A-1 folks. If the stuff is used to lie, well, the solution is to publish the truth.

  7. The 9th Circuit taking cases like this to reverse them is the main reason that their record is not 0-500 with the SCOTUS.

  8. If you’re going to argue that the market will take care of things better than regulation, you can’t support laws like this. If people aren’t aware of the treatment of animals, for instance, how can they ever demand change or be assured that the change they demanded has actually been instituted or if industry is paying them lip service?

  9. I guess Reason no longer supports the privacy rights of property owners. The First Amendment does not and has never applied to private parties. There is no right to violate the right of others.

    1. Then change the general laws, don’t make carve-outs for specific industries that have a bad habit of being bad actors.

      But Idaho is a single-party consent state, meaning that you don’t have to tell me before you start recording our “private” conversation.

      That said, the problem has never been that property owners don’t have rights. The folks that go in and do this already get sued under various statutes and such (including violating the NDA they sign when they come on). The problem is that they went above and beyond to make it a criminal offense to record at an industrial farm, where it’s only a civil penalty elsewhere.

  10. OT: Chris Matthews joked about raping Hillary Clinton.

    What an idiot.

  11. I don’t entirely hate the idea of sneaky investigative journalists… They do expose good stuff sometimes. BUT I don’t think that essentially declaring that it is LEGAL to use fraud to do so is legit. A lie to meet an objective that is against the person you are lying to is simply fraud in my opinion.

    That said, people should be free to do this, but they should also be free to be prosecuted for fraud of some variety for doing so. If you believe strongly enough in something to do something immoral to fight it you should be willing to take some hits for that. Like fighting a revolution to overthrow a government. That’s fine if people want to do that because they feel it is righteous… But don’t expect the people you want to overthrow to not hit back!

    If we simply declare it is fine to lie and commit fraud at any time, so long as it is a “righteous” cause, then that opens the flood gates to some serious bullshit.

    1. […] but they should also be free to be prosecuted for fraud of some variety for doing so.
      Prosecuted or sued? Because they do get sued. A lot. But prosecuted includes jail time, and that’s a step further.

  12. The so called “ag-gag” did need killing on account of it gave special protections to one group of people only. That’s an equal application problem, and even if some media outlets are sleaze, we can’t go there and pretend to be a freedom loving/rule of law kind of nation.

    1. Everyone has a right to control the taking of video on their private property.

      1. As a stated policy preference that an acceptable statement, but you should be aware that’s not (legally speaking) correct. Many states only require that one “party” consents to the recording.

        So while that may be your ideal law/policy, a more generally-applicable rule of thumb is “if you wouldn’t trust a person with a recording of you doing X, then you probably shouldn’t do X in front of them”.

        1. Here in Wisconsin there was a video that caused outrage of a crew moving a downed cow with a skid steer. How else are you going to move a downed two ton animal? Sometimes, regardless you have to do what you have to do.

          1. opps, ONE ton. Most dairy cows go 1500 to 2000 lbs depending on breed, Holsteins being at that upper end.

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